COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00427-CR
DAMIEN D. WALLACE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1341587D
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MEMORANDUM OPINION 1
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In two issues, Appellant Damien D. Wallace appeals his conviction and
sentence for unlawful possession of a firearm. We affirm.
Background Facts
On August 23, 2013, Fort Worth police officer Michael Haley arrested
Appellant on a warrant for sexual assault of a child under seventeen years of
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See Tex. R. App. P. 47.4.
age. During the arrest, Haley found a handgun in Appellant’s front pants pocket.
Based on his previous felony conviction of evading arrest with a previous
conviction, Appellant was charged with illegal possession of a firearm by a felon.
See Tex. Penal Code Ann. § 46.04(e) (West 2011).
After a jury was empaneled and sworn, Appellant pleaded guilty to the
indictment and pleaded true to the repeat offender allegation. The trial court
accepted the pleas and instructed the jury to find Appellant guilty. The State
introduced an agreed stipulation of evidence stipulating to Appellant’s previous
convictions that included three previous felony convictions.
The jury assessed punishment at seventeen years’ confinement and a
$2,500 fine. The trial court sentenced Appellant accordingly. Appellant then filed
this appeal.
Discussion
1. Appellant’s guilty plea
In his first issue, Appellant argues that insufficient evidence supported his
guilty plea. He argues that the agreed stipulations did not include evidence of
Appellant’s possession of a weapon and that there was no written waiver of a
jury trial or a signed judicial confession.
Appellant relies on article 1.15 of the code of criminal procedure. See Tex.
Code Crim. Proc. art 1.15 (West 2005) (“[I]n no event shall a person charged be
convicted upon his plea without sufficient evidence to support the same.”).
However, article 1.15 does not apply when a defendant pleads guilty before a
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jury. See Basaldua v. State, 481 S.W.2d 851, 855 (Tex. Crim. App. 1972);
Stahle v. State, 970 S.W.2d 682, 688 (Tex. App.—Dallas 1998, pet. ref’d) (“In
felony cases, a plea of guilty before the jury admits the existence of all elements
necessary to establish guilt and, in such cases, the introduction of evidence by
the State is only to enable the jury to intelligently determine punishment.”); see
also Holland v. State, 761 S.W.2d 307, 313 (Tex. Crim. App. 1988) (“It is well
established that in a felony case where a defendant has entered a guilty plea
before the jury, because there remains no issue of guilt to be determined, it is
proper for the trial judge in his charge to instruct the jury to return a verdict of
guilty, charge the jury on the law as to the punishment issues and then instruct
them to decide only those issues.”). A plea of guilty substitutes for a jury verdict
of guilt, and the case proceeds to a unitary punishment hearing. Fuller v. State,
253 S.W.3d 220, 227 (Tex. Crim. App. 2008), cert. denied, 555 U.S. 1105 (2009).
Because Appellant pleaded guilty before the jury, the trial court properly
proceeded to the punishment hearing without further evidence of Appellant’s
guilt. See id. We overrule Appellant’s first issue.
2. The fine
In his second issue, Appellant argues that the trial court erred by accepting
the jury verdict because it was not unanimous. The jury charge read, “In addition
thereto, WE DO/WE DO NOT assess a fine of $_____, (up to $10,000 or none).”
The jury wrote in 2,500.00 in the blank, and it was signed by the presiding juror.
Appellant claims that because the jury did not indicate “WE DO” or “WE DO
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NOT,” “there was no way to determine . . . that any members of the jury
assessed the fine.” The code of criminal procedure requires:
When the jury agrees upon a verdict, it shall be brought into court by
the proper officer; and if it states that it has agreed, the verdict shall
be read aloud by the judge, the foreman, or the clerk. If in proper
form and no juror dissents therefrom, and neither party requests a
poll of the jury, the verdict shall be entered upon the minutes of the
court.
Tex. Crim. Proc. Code Ann. art. 37.04 (West 2006).
After deliberating, the jury sent a note to the court that read, “We have
reached a [d]ecision.” The jury returned to the court room, and the following
exchange took place:
THE COURT: Did you reach a unanimous decision as to the
verdict in this case?
THE FOREPERSON: Yes, we have.
THE COURT: Did you reflect the unanimous decision in the
paperwork that you signed?
THE FOREPERSON: Yes, sir.
THE COURT: Would you please hand it to the bailiff?
The Defendant will rise with his lawyer.
Appears to be in the appropriate form.
Reads: We, the jury, find the Defendant, Damien D. Wallace,
guilty of the offense of unlawful possession of a firearm by a felon
as charged in the Indictment and do further find that the allegation
set out in the Repeat Offender Notice true. We assess his
punishment at confinement in the Institutional Division of the Texas
Department of Criminal Justice for 17 years.
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In addition thereto, we do—or I assume it’s, We do assess a
fine in the amount of $2500.
All right. Does either side wish to have the jury polled?
[THE STATE]: The State does not, Your Honor.
[APPELLANT]: No, Your Honor.
THE COURT: Thanks.
Now, gentlemen, I do want to bring to your attention that in the
verdict form, it does not have, We do assess. It just leaves it blank
and inserted an amount. So does either side wish to have a polling
with regard to the fine?
[THE STATE]: The State’s fine with the way the Court
received it as is.
THE COURT: Okay.
[APPELLANT]: I think the intent’s clear, Judge.
THE COURT: Thank you very much, gentlemen. Thank you.
I will receive and accept the verdict and sign it at this time.
Contrary to Appellant’s assertion that there was no way to determine
whether the verdict was unanimous (even ignoring the plain and unqualified
statement by the foreperson on the record that the jury’s decision was indeed
unanimous), the code of criminal procedure provides precisely the method to
determine unanimity—polling the jury. See Tex. Code Crim. Proc. art. 37.05
(West 2006). Appellant twice refused the opportunity to poll the jury, once after
the trial court noted that the verdict form did not explicitly state that the jury
assessed the fine. He has therefore forfeited his complaint. See Mathis v.
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State, 471 S.W.2d 396, 398 (Tex. Crim. App. 1971). We overrule Appellant’s
second issue.
Conclusion
Having overruled Appellant’s two issues, we affirm the trial court’s
judgment.
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: September 24, 2015
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